STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3808T

)

BERLIN SIGN COMPANY, )

)

Respondent. )

) BERLIN SIGN COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2562T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cases on December 7, 1984, at Bartow, Florida.

APPEARANCES

For Petitioner, Charles G. Gardner, Esquire Department of Haydon Burns Building Transportation: Tallahassee, Florida 32301

For Petitioner, John Berlin, Pro Se Berlin Sign: 264 Bahama Street

Venice, Florida 33595

At the commencement of the hearing scheduled in Case 84- 2562T the parties requested the Motion to Consolidate Cases 83- 3808T and 84-2562T previously filed be granted. Since both cases involve the same facts, the motion was granted. In Case 83-3008T Berlin Sign Company (Berlin), Respondent, requested a hearing to challenge the Department of Transportation's (DOT), Petitioner, Notice of Alleged Violation dated October 14, 1983, alleging Respondent's sign on U.S. 41, eleven miles north of the Charlotte County line is in violation of Section 479.111, Florida Statutes, regarding zoning. In Case 84-2562T Berlin contests the denial by DOT of its application to erect a sign on U.S. 41 two miles east of SR 775 in Sarasota County. Although the descriptions are different, both cases involve the same sign.

At the hearing DOT presented one witness, Berlin presented one witness, and seven exhibits were admitted into evidence.

FINDINGS OF FACT

1. On April 15, 1963, Berlin Sign Company was issued a Sarasota County sign permit, No. 766, for a sign along U.S. 41 400 feet south of Venice East Boulevard. This sign was visible to northbound traffic on U.S. 41 (Exhibits 3 and 4).

   
   

2. On December 23, 1963, Berlin was issued Sarasota County sign permit No. 940 for a sign one mile north of Venice East Boulevard (Exhibit 5). On January 23., 1964, Berlin was issued Sarasota County sign permit No. 957 to add 380 feet on sign issued permit No. 940 "One Mile to Venice East." (Exhibit 5)

   
   

3. The area in which the sign in Finding 1 is located is zoned Open Use Estates (OUS) and that zoning does not permit commercial or industrial enterprises. U.S. 41 is considered to be a north-south highway but in the vicinity of the sign here in question U.S. 41 runs in an east-west direction. Using the north-south nomenclature the application for a sign permit in Case 84- 2562T is for a sign located two miles south of SR 775.

   
   

4. The signs authorized by Sarasota County sign permits Nos. 766, 940, and 957 are nonconforming signs which were grandfathered in when DOT took over the regulation of signs and may remain as nonconforming signs so long as they are not altered or moved.

   
   

5. The sign involved in this dispute is the sign initially issued Sarasota County sign permit No. 766, which approved a sign visible to northbound traffic. Berlin, due to a mistake in its records, has for years assumed that either permit No. 940 or 957 went with permit No. 766 and authorized a face on this sign facing southbound traffic. From time to time this face has been erected and Exhibit 7 contains copies of contracts in which a sign at this location visible to south-bound traffic was rented by Berlin to customers. However, there is no record that a permit for a sign facing south-bound traffic at this location has ever been authorized by Sarasota County or DOT.

   
   

6. U.S. 41 is a federal-aid primary highway.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 479.111(2), Florida Statutes, provides that signs along federal-aid primary highways shall be permitted only in commercial and industrial zoned and commercial and industrial unzoned areas.

   
   

9. The area in which this sign is located is not so zoned, the southbound face on this sign has never been permitted, and is not now permittable as a "grandfathered" sign. Since the area is not zoned commercial or industrial, the sign proposed at this located facing southbound traffic cannot be permitted.

   
   

10. From the foregoing it is concluded that Berlin's sign facing southbound traffic on U.S. 41 two miles south of SR 775 and eleven miles north of the Charlotte County line has never been issued a permit, is an illegal sign and should be removed. It is further concluded that this area is not zoned commercial and industrial and Berlin's application for a sign at this location facing southbound traffic must be disapproved. It is

RECOMMENDED that Berlin Sign Company be directed to remove the sign facing southbound traffic located two miles south of SR 775 and that Berlin Sign Company's application for a permit to erect a sign at this location facing southbound traffic be disapproved because the area is not properly zoned.

ENTERED this 19th day of December, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 19th day of December, 1984.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

John Berlin

264 Bahama Street Venice, Florida 33595

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

Docket for Case No: 83-003808

Orders for Case No: 83-003808